November 7, 2022. In a new case challenging a beauty company’s alleged violations of the Illinois Biometric Information Privacy Act (BIPA), Tycko & Zavareei LLP advanced consumers’ chances of having their day in court for using a makeup try-on tool on the website of Too Faced Cosmetics, which is owned by Estée Lauder, that the plaintiff alleges captured sensitive biometric data without consumers’ consent. Judge Manish S. Shah in the United States District Court for the Northern District of Illinois granted in part and denied in part the beauty company’s motion to dismiss.
Under BIPA, companies that capture consumers’ biometric data (such as facial geometry), must provide consumers with a written policy about how that data is stored and ultimately destroyed. Visitors to the Too Faced website have the option of uploading a photo or using a real-time image of their face and overlaying makeup products on their image via a virtual try-on experience. Ms. Kukovec alleges that Too Faced and other Estée Lauder capture biometric information without consent do not provide consumers with information about what the company does with their biometric data, in violation of BIPA. Among the parts of the motion that were denied was the defendant’s assertion that visitors to the Too Faced website are bound by arbitration. Estée Lauder argued that users of the try-on tool are bound to arbitration based on a clause in its terms and conditions that are linked at the bottom its webpages. But the court found that the plaintiff successfully argued that Too Faced’s terms and conditions were not conspicuous and therefore was not bound by the company’s mandatory arbitration clause.
“We are pleased with the Court’s decision and look forward to pursuing this case on behalf of Ms. Kukovec and consumers like her. Protection of biometric identifiers like facial geometry is crucial to the safeguarding of consumers’ privacy rights, and corporations that choose not to protect this sensitive information or even disclose that they are taking it need to be held accountable,” said Glenn Chappell, Associate and TZ’s Appellate Practice Group Chair.
The case is Morgan Kukovec v. The Estée Lauder Companies, Inc., Case No. 22-CV-1988 in the United States District Court for the Northern District of Illinois, Eastern Division.